Comyn's Dig. "Nuisance;" [Wood, V.-C., said, his chief difficulty was caused by the delay of the plaintiff in taking active steps. The first complaint was made in 1861.] This was not an interlocutory application, where the plaintiff's delay might have prevented his obtaining an injunction till he had established his right at law. [Wood, V.-C., said, that under the old practice, the plaintiff could not have obtained an injunction at all in such a case till he had established his legal right.] That had been altered by the Act 25 & 26 Vict. c. 42. It would be no answer at law to plead that the nuisance had continued for two years: Flight v. Thomas, 11 Ad. & E. 688. The plaintiff could not file a bill till he sustained injury. He knew nothing of the purpose for which the siding was to be used. If a large chimney was built near a person's house, he was not bound to make any inquiries or objections till he saw whether it was used offensively or not. | not been told for what purpose it was to be used, yet knowing the nature of the traffic carried on at the station, he was bound to make some inquiries about it. He did not accede to the view taken in argument, that a person seeing a large chimney being built near his house, could abstain from making inquiry or objection till he was injured. In a case frequently referred to by Lord Eldon,* a person seeing a mine opened, which would be useless without a right of way over his own land, and standing by, was not allowed subsequently to stop such right of way from being acquired. Up till 1861, the plaintiff had not only acquiesced in the traffic, but regarded it as beneficial. In December of that year he made his first complaint, but followed it up by no active proceedings till November, 1862, during the whole of which time the traffic was steadily increasing. The plaintiff having thus delayed to take any steps for more than four years, having brought no action to establish his legal right, having stood by and seen money laid out on the siding, and the traffic increase, without making any objection, could not now Rolt, Q.C., and T. Stevens, for the company, were not be permitted to ask the Court to do what, in effect, called upon. WOOD, V.-C., said, there were two classes of cases in which the Court interfered in aid of legal rights :-1st, in the case of bills quia timet, where an application was made to the Court to restrain an alleged infringement of a legal right, and the Court interfered if reasonable cause were shown, so as to give an opportunity of trying the right by action at law; 2nd, in the case of bills of peace, as where repeated actions of ejectment had been brought and failed, and the Court prevented any further action being brought. In the first class of cases, the Court formerly never interfered if the plaintiff had had ample opportunity of trying his right; and on this point Bateman v. Johnson (Fitz.-G. 106) mainly turned. In the present case there had been ample opportunity of trying the right; and the only question was, whether the recent Act, 25 & 26 Vict. c. 42, enabling the Court to decide legal questions in suits properly instituted, had so far altered the practice as to enable the plaintiff to wait for between four and five years, and then come into a Court of Equity without bringing an action, for no other reason than that it better suited his convenience so to do. His Honour was of opinion that such was not the effect of the Act, and on this ground alone the relief sought could not be granted. It was clear that the present bill could not be sustained as a bill of peace. There was, however, another reason for refusing relief in this case. It was a doctrine of the Court, that if a person saw his rights being infringed, and stood by, so as to place the person who was infringing them in a disadvantageous position, the Court would not interfere. In the present case the plaintiff had seen the siding constructed, and though he had Į would be to stop the traffic of the company. Minute.-Bill dismissed, with costs. Bankart v. Hodghton, 27 Beav. 425. Wood, V.-C. Practice - Lands Re HAMPSTEAD JUNCTION RAIL- Clauses Consolidation Act, s. 82-Costs of Conveyance. Under section 82 of the Lands Clauses Consolidation Act the only costs payable to the landowner are those incident to the conveyance, including those of deducing and verifying the title to the thing conveyed: but no costs of ascertaining the thing conveyed can be given. A landowner contracted with a company to sell certain lands at thirty-five years' purchase of the groundrents: Held, that the costs of apportioning the ground-rents, under section 119 of the Act, could not be allowed to the landowner. This was a motion on the part of the owners of certain lands taken by the above-mentioned railway to vary the certificate of the Taxing Master, made in respect of a certain bill of costs which had been taxed by him. By special agreement between the landowners and the company, the latter agreed to purchase certain lands required by them for a sum equal to thirty-five years' purchase on the ground-rents. * See Jackson v. Cator, 5 Ves. 589. The landowners then employed a surveyor to appor-cident to the conveyance; that is to say, all those tion the rents in accordance with section 119 of the Lands Clauses Consolidation Act, and in so doing considerable expense was incurred. At length a deed was prepared in which the property conveyed to the company was described by reference to a schedule, embodying the result of the apportionment; and the draft of this deed was approved by the company's solicitors, subject to the approval of the schedule by the company's surveyor. The deed contained a clause providing that the "company shall bear and pay all and singular the costs, charges, and expenses of and incident to the preparation of these presents, and the execution thereof by the several parties hereto." A bill of costs incurred by the landowners in respect of the sale of their lands was sent in to the company, and contained numerous items relating to the expenses incurred in apportioning the rents. All these were disallowed by the Taxing Master. Giffard, Q.C., and F. H. Colt, on behalf of the landowners, now contended, that, under section 82 of the Lands Clauses Consolidation Act, the items disallowed onght to be allowed, as being costs of matters relating to the conveyance of the property. This section was intended to include all legitimate costs as between vendor and purchaser, Re Spooner, 1 K. & J. 220; Lake v. Eastern Counties Railway Company, 19 The schedule was strictly part of the deed, and could not have been made without the assistance of the surveyor. Further, if they were not entitled to these costs under the Act, they were entitled to them under the clause in the deed itself. Sir H. Cairns, Q.C., and Speed, for the company, commented on the difference between the provisions of the 80th and 82nd sections of the Act. The former section provides for the costs of the purchase of land taken from incapacitated persons; the latter for the costs of conveyances of land taken from persons sui juris. The costs of conveyance began with the delivery of the abstract of title; and no other costs could be given under section 82; the reason being, that any previous costs would be included in the price paid for the land, Re South Wales Railway Company, 14 Beav. 418. If the landowners in the present case had desired to have the costs of apportionment, they ought to have bargained for them. As to the words in the deed, they pointed only to the professional costs of preparing it. Giffard, Q.C., replied. WOOD, V.-C., said, that, under the 82nd section of the Act, no costs could be given, except those in incurred after the thing to be conveyed was ascertained, including those of deducing and verifying the title thereto. Thus it would be the duty of a solicitor, when the draft deed of conveyance had been prepared, to verify the recitals by comparing them with the original deed; and if a map or plan were annexed to the deed, that would require verification; and costs incurred for those purposes would be allowed. But no costs of ascertaining the thing to be conveyed would be allowed under that section; they must be provided for by the agreement between the landowner and the company, and in case of difference, would be a proper subject of consideration for the jury or arbitrator, who determined the price to be paid for the lands. Minute.-Disallow all costs occasioned by the apportionment of the rents, except any which might have been incurred in employing a surveyor to verify the schedule annexed to the deed. Wood, V.-C. 19 Nov. 1863. THE WESTMINSTER BRYMBO COAL AND COKE COMPANY (Limited) v. CLAYTON. Practice-Production of Documents-Right of Plaintiff to further affidavit as to Particular Documents. A plaintiff is entitled to a further affidavit as to documents only when the defendant's answer and origina affidavit are inconsistent, either with themselves or with one another. Affidavits in reply to an affidavit as to documents are inadmissible. Semble, If a specific document is charged by a bill to be in the defendant's possession, and specific information is required in respect of it, and the answer is insufficient, exceptions would be allowed, even though they might not be allowed if the interrogatory as to documents had been general, and the defendant had not answered it. This suit was instituted to determine the boundaries of certain adjoining coal mines, worked respectively by the plaintiff and defendant under leases. The bill contained an allegation, that in January, 1861, negotiations had taken place for an exchange of certain of the minerals held by them respectively under their respective leases; and that, on this occasion, the defendant had seen Mr. Napier, the manager of the plaintiff's colliery, and given him a tracing from a map which was represented by the defendant to be a correct delineation of the boundaries of the lands held by the plaintiff and defendant. The defendant, in the 31st paragraph of his answer, stated, that the tracing in question was taken from a sketch or plan made by him for the purposes of the proposed exchange; but denied that he had represented it to be a corrected delineation of the boundaries, "I believe that I traced the outline of this sketch or plan from a working plan then and now in my possession; but I gave the said sketch to the said Mr. Napier, and have no copy thereof, and do not exactly recollect what it was; but, I believe, that if it shows the western boundary of the said land, numbered 76, I did not take this from the said working plan, but I placed it at what I then understood to be the western boundary of the minerals at this spot as claimed by the company." The defendant's affidavit as to documents did not include the working plan mentioned in the answer. The plaintiff, thereupon, applied, in Chambers, that the defendant should file a sufficient affidavit, “stating particularly whether he has not now in his possession or under his control, and if not, when last he had possession or control, and accounting for, a certain working plan mentioned in the 31st paragraph of his answer filed in this cause, and by such answer sworn to be then in his possession, and also stating whether he has in his possession, or under his control, or when he had such, if not now, and what has become of certain surface and underground plans and sections, and working plans relating to the matters in question in this cause. This application was supported by an affidavit in which it was stated that the defendant's lease contained a covenant with the owner of the mine, to keep an accurate plan of the workings of the mine. The summons having been adjourned into Court, Rolt, Q.C., Giffard, Q.C., and Freeling, appeared in support of it. They urged the following reasons:1st. The answer of the defendant was inconsistent with itself; and on this ground the plaintiff was entitled to call on him for a further affidavit. 2nd. The affidavit in support of the summons showed reason for supposing that the working plan related to matters in question in this suit; and was admissible in support of the application on the authority of Richards v. Watkins, 6 Jur. (N. s.) 168; Noel v. Noel, 2 N. R. 294. WOOD, V.-C., said that the practice as to discovery was founded on admissions made by the defendant, and he could not be called on to make a further affidavit as to documents, unless his answer and original affidavit were inconsistent either with themselves or with one another, and that the Court had refused to allow him to be cross-examined on his affidavit for similar reasons. * He was of opinion that the difficulty suggested by the argument did not exist. Though the Court would not allow any exceptions to an answer for insufficiency where the interrogatory was merely a general one and the same information could be got by a summons in Chambers, yet there was no case which decided that exceptions would not be allowed where a specific document was charged to be in the defendant's possession, and specific information was required in regard to it. Further, his own practice in Chambers in cases where there was grave suspicion that documents had been omitted from an affidavit, was to direct the person applying for a further affidavit to write a letter pointing out the nature of the information required. If after receiving such a letter the defendant refused to make a further affidavit, he would place himself in an awkward position: while if he made a false affidavit, the letter could be used in an indictment for perjury. In the present case his Honour held that there was such inconsistency on the face of the answer as to call for further explanation. It was the right of the defendant, as much as of the plaintiff, to give such explanation. As to the covenant alleged to be in the lease, he could not take any notice of it: first, because he could not presume that it had been observed; and, secondly, because even if he could, there was nothing to show that the plans related to the matters in ques tion in the suit. He should order the defendant to make a further affidavit as to documents in his possession. Note.*-See, however, Hudson v. Genfell, 3 Giff. 388. Wood, V.-C. LIGHTFOOT V. BURSTALL. Where a testator gave one-third of the proceeds of the conversion of his residuary real and personal estate to A for life with remainder to his children, and declared that on failure of A's issue the one-third should sink into his residuary estate, and be held and applied accordingly; and then gave the other two-thirds to other persons; and A died without issue Held, that A's one-third was not given to the other residuary legatees, but was undisposed of. Humble v. Shore (7 Hare, 247), followed. The question in this suit, which was heard on motion for decree, was whether one-third of the testator's residuary estate was given to the legatees of the other tvo-thirds, or had lapsed. Woop, V.C., thought that Humble v. Shore was rightly decided in principle. The fallacy of Mr. Amphlett's argument was, that the words following the bequest to F. Burstall and his children amounted to a gift. One might have some suspicion of an intention beyond what the law would imply, and one might be inclined to think that these words ought to have some effect given to them. The argument, however on the other side was at least as strong, that if the testator had intended to have given this share over to the other two legatees, nothing was simpler than for him to have said so. It was too much for the Court to imply that by using words which were mere surplusage the testator intended a and personal estate unto, or in trust for, her cousin, Sarah Whitaker, widow, her executors, administrators, and assigns absolutely. "And whereas it is my will and meaning that the said Sarah Whitaker shall take and enjoy only a life interest in the aforesaid part or share of the said residuary trust-fund, and, subject thereto, that the capital of the, same fund shall be disposed of as hereinafter mentioned; now, therefore, I direct." She then gives a direction, which I The testator gave his real estate, and also his personal estate, to trustees, upon trust to convert and out of the proceeds to set aside a sum to pay an annuity, and to pay legacies; and to hold the surplus moneys, and the sum so set aside, subject to the annuity, upon trust as to one-third for his nephew, Francis Burstall, with remainder to his children who should attain twenty-one as tenants in common. The will then proceeded in the following terms "If there should be no such child, then after the decease of the said Francis Burstall and such failure of his issue as aforesaid, the same trust moneys, and premises, shall sink into, and form part of my residuary real and personal estates, and be held and applied accordingly." Another third the testator gave to M. Bolton for life, with remainder to her children, and the remaining third he gave to M. B. Lock, absolutely. Francis Burstall died after the testator's death, with- omit; because it is inapplicable to the ultimate disposi out issue. : tion of the fund. She then goes on to say what the disposition of the capital shall be; and, importing that into the Rendall, for the plaintiff, the surviving trustee of clause I first read, the case will be the same as if she had said, "I give her only a life interest in the aforesaid residuary trust fund, and, subject thereto, the capital of the same the will. Roll, QC., and Wickens, for the next of kin of the shall sink into the residue of my personal estate, and be dis Creswell v. Cheslyn, 2 Eden, 23. Amphlett, Q.C., and Bristowe, for the other residuary legatees, contended; 1st, that the testator's manifest intention was to give the whole of F. Burstall's share, on failure of his issue, over to the other residuary legatees; 2nd, that the Court would arrive at the same result by a process of infinite subdivision. At least they were entitled to two-thirds of F. Burstall's third: Atkinson v. Jones, Johns. 246; Evans v. Field, 8 L. J. (N. s.) Ch. 264; Harris v. Davis, 1 Coll. 416, 426. The report of Humble v. Shore could not be relied on: neither the arguments of counsel nor the judgment were given. Nalder and Jackson for other parties. Rolt read extracts from the short-hand writers' notes of the judgment of Wigram, V.-C., in Humble v. Shore.* posed of accordingly." Now, if she had simply said, "I will that she shall take a life interest only," that would be equivalent to a revocation of the bequest to her, except to the extent of the life interest; and, in that case, Creswell v. Cheslyn would have been a direct authority for the proposition that the next of kin would be entitled to the property. The effect would have been that, in law, the share, subject to her life interest, would have sunk into the residue and would have been disposed of as such. If the testatrix, instead of revoking the bequest to her, except to the extent of her life interest, goes on to say, "I will that it shall sink into the residue," she expresses no more than the law would imply, and the case would be precisely the same as it was before, and the estate would be distributed to the next of kin. The whole question turns on this-Besides saying it shall sink into the residue, she gives a direction to her trustees that it shall be disposed of accordingly, and the question is whether, having willed it shall sink into the residue and be disposed of accordingly, those words, "disposed of accordingly," mean disposed of as residue, or whether they mean something else. On that point I will look into the will to see whether from any parts of it I can collect an intention, or get any certain guide to go on. Tuesday, 16 March, 1847. Now the case of Creswell v. Cheslyn is a direct authority that, where a share of the residue which is given absolutely by the bequest is revoked, that share becomes residue undisposed of, unless it is given to some one else. The question, therefore, is on the second codicil, whether there is a gift of Sarah Whitaker's share to anybody else. The first direction is that it shall sink into the residue of the estate. That of course is no * Saturday, 13 March, 1847. WIGRAM, V.-C.-I will dispose of the question about the next of kin, the only point I doubt about, on Tuesday morning. With respect to the rest of the case, I can dispose of it now, and also in part dispose of the question even with respect to gift to any one else. But then there is a direction that it shall the next of kin, so far as stating the point on which I think be disposed of as after mentioned, and when you come to the my judgment must eventually turn. The first question is, as words "after mentioned," the direction is that it shall sink into to Mrs. Sarah Whitaker's share. By the will one-third of the the residue of the personal estate and be disposed of accordresidue was given to her absolutely. The testatrix, by her willingly. The question is, whether the direction, that a share of [ie, but qu. codicil], recites that she had, by her will or testa- the residue previously undisposed of is to be disposed of mentary appointment, given and bequeathed one-sixth of the accordingly, is a gift to the legatees. My opinion is it is not. moneys constituting the residuary fund arising from her real I cannot find any gift to the residuary legatees in those words. gift. Evans v. Field was a strong decision, but it was distinguishable from the present case; for there the testatrix made a gift and disposal of what should fall in. The shares in that case did not exhaust the fund, and the Court must have arrived at its decision by some such process of subdivision as his Honour was asked to adopt here. This case was exactly like Humble v. Shore; and with that decision his Honour entirely agreed. The decree, therefore, would contain a declaration that one-third share of the testator's residuary real and personal estate had lapsed. Insolvent Debtors' Court had, on the 22nd day of April, 1863, obtained his order of discharge, conditionally upon his setting aside out of his pension of 170/ per annum, as such clerk, the yearly sum of 401. fœ the payment of his debts. The first instalment of this 401. became due on the 1st day of October, 1863, but the bankrupt alleging that he was acting under advice, refused to make any payment on account of it. Dowse, on behalf of the creditors' assignee of th: bankrupt, now applied under the 226th section of the Bankruptcy Act, 1861, for the committal of the bankrupt to prison, as having by such refusal wilfully disobeyed "the rule and order of the Court." HIS HONOUR said, that here there was no such "rule and order of the Court" to the non-compliance with which the 226th section would apply. Sargood, for the bankrupt, submitted, that the Court had no jurisdiction, and that the application ought to be refused. HIS HONOUR said, that the order of discharge could not be held to be per se, an order for payment, and, in point of law, the application must fail. Minute.-Application refused. Q. B. COMMON LAW. 26 JUNE, 4 Nov. 1863. Public purposes-Charities. REGINA V. THE INHABI-| certain other persons, trustees of the charity herein. TANTS OF STAPLETON. after-mentioned, against a rate made upon them respectively as occupiers of certain premises in the parish of Stapleton, the Court of Quarter Sessions for the county of Gloucester amended the rate by striking out the names of the said Richard Rowlatt and of the said trustees, subject to two special cases for the opinion of this Court, by which the following facts appeared: Certain lands and buildings vested in trustees were held by them under the provisions of a deed of settlement, for the purposes of a charitable institution for the education, clothing, and maintenance of a hundred poor boys. The trustees employed the necessary schoolmasters, paying their salaries and defraying all other necessary expenses out of the profits of the lands so vested in them. They had also the ordering and governing of the boys, and appointed one-half of their number; and they held meetings from time to time at the school premises. These consisted of a residence, and offices, and a playground, and a garden of which the schoolmaster had the exclusive use. The schoolmaster had also separate apartments allotted to him in the school premises, where he resided with his family : By indentures of lease and release, dated the 24th and 25th of November, 1708, Edward Colston conveyed a messuage and lands to certain persons in fee upon trust to permit the master, wardens, and assist ants, and commonalty of merchant adventurers within the city of Bristol, and their successors, to hold and enjoy the said messuage and lands upon trust that the said house should be for ever used and employed for a house, habitation, and abiding-place for a hundred poor boys, and one or more schoolmasters, and for necessary servants to inhabit in and for a school to teach the said boys, and to provide them meat and clothing, &c.; and a convenient allowance for such schoolmasters at the discretion of the trustees, who might from time to time displace such schoolmasters if they should think fit; and also, from time Upon appeals by one Richard Rowlatt, and also by to time, to repair the said house; and to pay and dis Held, that the schoolmaster was liable to be rated in respect of the portion of the school premises used as his residence, and that the trustees were rateable in respect of the residue of such premises. |